delivered the opinion of the court:
Aрpellee, Elmer N. Lewark, a minor, in June, 1917, filed a bill by his next friend in the circuit court of Cook county to contest the will of Lula G. Knorr upon the ground of the insanity of the testatrix and the undue influence of the sole devisee with reference tо the same. Upon the trial of the issue in the circuit court the jury returned a verdict finding that the instrument in question was not the last will and testament of Lula G. Knorr, and the court rendered a decree adjudging the will, and the probate thereof, void. This аppeal followed.
Lula G. Knorr executed the instrument here in question on September 20,' 1913, leaving all of her property to Mary F. Dodd, the wife of Charles Dodd, neither of them being related in any way to her. The testatrix died October 21, 1913. She left no surviving husband, and her heirs were her mother, Mary F. Knox, and Elmer N. Lew-ark, the appellee, and his sister, who were her nephew and niece. The will was admitted to probate January 8, 1914. On January 7, 1915, Mrs. Knox and the appellee and his sister (bоth the latter then being minors, by Mrs. Knox, their next friend,) filed a bill to contest the will, which was afterwards dismissed for want of prosecution. The bill on which the decree here in question was entered was filed June 1, 1917. Appellants do not question the verdict, but they insist that the court erred in decreeing the will to be void in its entirety instead of limiting the effect of the decree to the interest of the appellee, and that no issue of law was properly made up as to whether the writing produced was the last will and testament of the testatrix.
In this State the descent of property, whether by inheritance or devise, is controlled by statute. The right to make a will and the right to take property under a will exist only by virtue of the statutes of this State and are entirely subject to their provisions. (In re Estate of Graves,
The question first presented here is, whether by the proviso to said section 7 as to contesting wills the court is given the right to entirely set aside the will at the suit of one within the saving clause after the year has passed, so as to wholly dеstroy the interests of all the beneficiaries named by the instrument, or only to set it aside as it affects the interests of the heir who was an infant or non compos mentis at the time the will was probated, and who filed such contest beforе the expiration of a year after becoming of age or becoming sane, as the case may be.
This court in Dibble v. Winter,
It will thus be seen that the tendency has constantly been to shorten the time within which the contest can be brought and to narrow the сlasses of people for whose benefit the time is extended. Now the statute of this State provides that the contest must be brought within a year after the disabilities are removed, the last amendment in 1903 changing the limitation from three yеars to one. Under the authorities already cited there can be no question that the legislature could, in terms, fix the time of contest as to all parties in any manner that it desired. In view of the histoiy of legislation on this subject, did it intend, when it passed the proviso to section 7 as it now reads, to make the probate of the will binding and conclusive on all parties except infants and persons non compos mentis unless a contest was begun by one or more of the parties not under disability within one year after the probate of the will ? This question has never been passed upon by this court, but under practically similar statutory provisions as to contesting wills the Supreme Courts of California and Mоntana have held that such a statute was conclusive as to all those under no disabilities if the contest was not begun within the time so limited. (Samson v. Samson,
It is argued with earnestness by counsel for appellee that it is unreasonable to construe the statute so that a will can be valid as to certain of the heirs or parties and invalid as to others; that the will should be annulled in its entirety or not at all. We see no difficulty, however, in voiding the probate so far as concerns the interest of the contesting heirs then or formerly under disability and permitting it to stand so far as it concerns the heirs who have lost their rights by lapse of time. It is purely a question of what thе legislature intended. One of the great objects of the law is to quiet the title to property and render it certain. If section J is to be construed as contended for by counsel for the appellants, there would be a chance that twenty years or more after a will was probated the whole title under which the beneficiaries claimed might be overthrown and the property given to the heirs. This would render it very difficult, if not impossible, to dispose of the property or improve it to any considerable extent during all that time. It is the policy of the law to limit uncertainties, such as the one here under consideration, as much as is commensurate with other rights which the law cannot overlook. It is clear the policy of the law has been for many years in this country, and especially in this State since 1829, to limit the time in which will contests could be brought. It would be absolutely contrary to the trend of public policy in this regard tо construe this statute as holding that the rights of the beneficiaries, not only with t respect to those heirs who are under disability but also with respect to those under no disability, shall remain unsettled until such time as the disabilities of all the heirs are remоved. In our judgment a fair construction of the statute, in the light of the history of legislation upon this subject, is that after the year the probate is, as the proviso says, forever binding and conclusive on all the parties concerned, еxcept infants and persons non compos mentis. The circuit court erroneously held otherwise.
It is also urged by counsel for appellants that the final decree is wrong because the record shows that no issue of law was properly made up as to whether the writing produced was the last will and' testament of the testatrix. The decree recites: “The court having heretofore directed an issue at law to be made up whether the writing referrеd to in the pleadings and purporting to be the last will and testament of Lula G. Knorr, deceased, was the last will and testament of the said Lula G. Knorr or not, and a jury * * * having been duly called, selected and sworn to try the said issue, * * * and the jury having found by their verdict that the said writing was not the last will and testament of said Lula G. Knorr, deceased,” etc. In a system of practice where the common law and equity courts were entirely separate and their jurisdiction was exercised by diffеrent judges, an issue to be tried at law was certified by the chancery court to the common law court, and after the trial the verdict was certified by the common law court back to the chancery court. Under our system the sаme judge exercises both common law and chancery jurisdiction in the same court at the same time, and he may make the issue at law and immediately call a jury to try it. This practice has made it unnecessary in our courts to follow somé of the rules which prevailed under the system of separate courts of chancery and common law jurisdiction, and in practice some of such rules are disregarded. (Williams v. Bishop,
The decree of the circuit сourt will be reversed and the cause remanded, with directions to enter a decree in accordance with the views herein expressed, holding the will to be void but limiting the effect of the decree only as to the interest of the minor heir of Lula G. Knorr, deceased, who by his next friend brought this contest.
Reversed and remanded, with directions.